Bell Lumber Company v. Alewine
| Decision Date | 10 March 1924 |
| Docket Number | 226 |
| Citation | 259 S.W. 373,163 Ark. 164 |
| Parties | BELL LUMBER COMPANY v. ALEWINE |
| Court | Arkansas Supreme Court |
Appeal fro Pope Circuit Court; A. B. Priddy, Judge; affirmed.
STATEMENT OF FACTS.
J. L Alewine commenced this suit before a justice of the peace against the Bell Lumber Company, a partnership composed of C Bell, O. C. Alewine and Reece Alewine, to recover the sum of $ 207.50, the balance alleged to be due for lumber sold by the plaintiff to the defendants. The defendants denied that they were indebted to the plaintiff in any sum whatever.
The plaintiff recovered judgment against the defendants in the justice of the peace court for the amount sued for, and the defendants appealed to the circuit court. In the circuit court the case was tried before a jury.
J. L Alewine was the principal witness for himself. According to his testimony, he lived about three miles northeast of Atkins, in Pope County, Arkansas, and bought a tract of land near his farm, which it was estimated could be sawed into between 75,000 and 100,000 feet of lumber. The Bell Lumber Company had a lumber yard at Atkins, Arkansas. J. L. Alewine made a contract with O. C. Alewine to sell the lumber cut from the timber in question to the Bell Lumber Company for $ 30 per thousand, "mill run." W. R. Taylor ran a sawmill near the land, and it was understood between the parties to this suit that Taylor should be hired to saw the timber into lumber. The lumber haulers were to be given slips of paper showing the grade, price, and quantity of lumber delivered to the Bell Lumber Company. These slips were to be delivered by the lumber haulers to Taylor, and to be used by him and J. L. Alewine in settlement of the amount of lumber cut by Taylor for said Alewine. When 24,368 feet of lumber was delivered to the Bell Lumber Company, Reece Alewine gave J. L. Alewine a check for the purchase price thereof at the rate of $ 30 per thousand feet. On the 11th day of September 1920, J. L. Alewine received another check in payment of 11,243 feet of lumber at $ 30 per thousand. On September 24 1920, he received a check in payment for 8,558 feet of lumber at $ 30 per thousand. J. L. Alewine did not receive any further payments on account of the lumber, but the slips which were given to the haulers were turned over by them to Taylor. On the 5th day of November, 1920, all the logs had been hauled to Taylor's mill, and Mr. Taylor then showed J. L. Alewine one of the slips of paper which the haulers had delivered to him, and it showed that the Bell Lumber Company was only allowing the plaintiff $ 25 per thousand feet for the lumber. The plaintiff then went to see O. C. Alewine about the matter, and he told the plaintiff to go ahead and haul the rest of the lumber, after it was sawed, and they would treat him right. The land from which the timber was taken cost the plaintiff $ 360. It cost him $ 24.50 per thousand feet to have the timber cut down, sawed into lumber and hauled to the mill of the defendants. After crediting the defendants with all payments at the rate of $ 30 per thousand feet for the lumber hauled, the defendants owed the plaintiff $ 207.50. The testimony of the plaintiff was corroborated by that of his son.
O. C. Alewine was a witness for the defendants. According to his testimony, he worked with the machinery in their mill, and made no contract whatever with the plaintiff for buying his lumber. He only told the plaintiff the prices which the Bell Lumber Company paid for different kinds of lumber.
Reece Alewine was also a witness for the defendants. He admits giving the plaintiff checks for lumber at the rate of $ 30 per thousand feet in the amounts testified to by the plaintiff, but he says that he did this in reliance upon the statement of the plaintiff to the effect that C. Bell, one of the defendants, had agreed to pay him that price.
C. Bell was also a witness for the defendants. According to his testimony he did not agree to pay the plaintiff $ 30 per thousand feet for mill-run lumber. He agreed to pay $ 30 per thousand feet for common boxing, $ 35 per thousand feet for clear boxing and $ 25 per thousand feet for what is termed narrows and dimension lumber. These were the prices that the Bell Lumber Company paid other parties for lumber, and were the prices which they agreed to pay to the plaintiff for his lumber delivered at the mill. The understanding was that the lumber was to be cut at the sawmill of W. R. Taylor and then hauled to Atkins to the lumber yard of the defendants. The defendants would give the haulers slips of paper showing the grade, measurement and price of each load hauled to the mill, to be delivered by them to Taylor. These slips were to be used in the settlements between all the parties.
Taylor testified that he knew that the defendants were only allowing the plaintiff $ 25 per thousand feet for the lumber delivered, as shown by the slips, and stated that he did not tell the plaintiff about this until after all the logs had been hauled to his mill, which was on the 5th day of November, 1920. He said the reason he did not tell him sooner was because he wanted to saw the lumber for the plaintiff and was afraid that, if he told the plaintiff that the defendants were only allowing him $ 25 per thousand, he would quit cutting his timber and having it sawed. The plaintiff had told him before this that the defendants had agreed to pay him $ 30 per thousand feet, "mill run," for his lumber. Taylor further stated that he had agreed to take the grade and measurement of the lumber made by the defendants at their mill, and that it was understood that the slips showing this and the price of the lumber should be returned to him by the haulers, to be used by him in settling with the plaintiff. From a verdict and judgment in favor of the plaintiff for the amount sued for, the defendants have duly...
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